Hafka'at Kiddushin / Ezra Frazer [1]
This article will analyze the Talmudic concept of hafka'at kiddushin (abrogation of a marriage). We will divide our discussion into three primary sections. One will examine the various contexts in which the concept appears in the gemara, one will explain the principles by which it operates, and one will address the possibility of applying it in practice.
Introduction
The full phrase which is used to describe abrogation of marriage is afka'inhu rabbanan le-kiddushin minei, "The rabbis abrogated his kiddushin [2]." This concept does not refer to a general method of terminating a difficult marriage, similar to divorce. Rather, as the Rashba, Ra'ah, [3] and Tashbetz [4] point out, there are two specific situations in which the rabbis have this power. [5] First, if a divorce is performed in a problematic manner, there are times when the rabbis can terminate the marriage despite the problem in the divorce ceremony. [6] Secondly, if a flaw existed in the marriage ceremony itself, the rabbis can sometimes negate the ceremony. We will now examine each of these categories.
I
Empowering an Invalid Get
The gemara ( Gittin 33a) discusses the halakha regarding a man who sent a messenger to deliver a get (bill of divorce) to his wife and then changed his mind. The gemara is concerned that if the man now cancels the get, the messenger will nonetheless deliver it, (having not known that it was cancelled) and the woman will mistakenly remarry. R. Shimon ben Gamliel [7] claims that the husband's nullification of the get, while being valid according to Torah law, is invalidated by the rabbis in order to allow the woman to remarry. The get, therefore, is still effective, and the woman is legitimately divorced. The gemara then remarks:
But can there be such a thing, that from a biblical standpoint the get is void [because Torah law permits the man to cancel it], and in order to enforce the power of beit din [the rabbis, who do not want the get to be nullified] we permit a married woman to [marry any man in] the world? Yes, because everyone gets married according to the will of the rabbis, [8] and the rabbis abrogated his marriage. Ravina said to R. Ashi, "This makes sense when the ceremony was performed with money ( kesef) [9] [or any other object of value, because the rabbis have the authority to revoke his ownership of the object ( hefker beit din hefker), making the original marriage ceremony null and void [10]]. However, what can be said if the man married her through intercourse? [11]" [R. Ashi answered,] "The rabbis render his intercourse promiscuous ( be'ilat zenut)." [In other words, it is viewed as if the couple cohabited outside the context of marriage.]
The gemara appears to state that in order to effect a get which is invalid according to Torah law, the rabbis undo the original marriage ceremony retroactively. [12] Elsewhere, the gemara gives the same explanation for two other cases of biblically invalid gittin which the rabbis render effective. [13] Since it appears that these gittin negate the entire marriage, the Ri [14] thus posits that if a woman had committed adultery before receiving such a get, she would be retroactively exonerated from her sin.
However, many Rishonim and Acharonim find it difficult to believe that a perfectly valid marriage can be retroactively undone. Could it be, asks the Rashbam [15], that every time a woman commits adultery she can escape punishment by convincing her husband to send a get with a messenger and cancel the get before it arrives? [16] Furthermore, the Pnei Yehoshua [17] points out, retroactively abrogating a marriage means that during its entire duration the couple was, in essence, living together outside of wedlock. In the cases described in Gittin 73a (involving a deathly ill man who unexpectedly recovered) and Ketubot 3a (involving a conditional get where the condition was accidentally fulfilled, but the husband did not truly mean to divorce his wife), neither side of the divorcing couple did anything inappropriate, so how could the rabbis ascribe to both of them the sin of living together for years out of wedlock? [18]
Due to these problems, various suggestions have been given to explain that the gemara never meant that the marriage is abrogated retroactively. The Rashba [19] suggests that hafka'at kiddushin in these situations is merely a threat. In all of the cases where the rabbis apply hafka'at kiddushin at the time of divorce, it is because the husband indicates that he does not want the get to take effect. Without the husband's consent, the get does not work, leaving the rabbis no choice but to apply hafka'at kiddushin. However, the husband, stubborn as he may be, surely does not want his entire married life to be suddenly rendered illicit. Consequently, despite what he may seem to indicate, he does not actually want the get to be cancelled. Thus, the threat of hafka'at kiddushin causes the husband to consent to the get taking effect. [20] In the end, the divorce occurs now, and nothing needs to be retroactively abrogated.
A somewhat different solution is offered by the Pnei Yehoshua. [21] As mentioned above, his primary concern was that a man who did nothing wrong should not suddenly become a man who has been living with a woman out of wedlock. He thus explains that the primary intention of the gemara is that any man sending his wife a get should do so in accordance with the will of the rabbis (just as the gemara mentioned that he gets married in accordance with their will). Therefore, if this man knew that the get's nullification is against the rabbis' will, he would undoubtedly not mean to hurt the get's effectiveness. Hence, it can be assumed that the husband did want the get to take effect. Should the husband insist afterwards that he truly wanted for the get not to work, and he has no regard for the will of the rabbis, hafka'at kiddushin is then applied to his marriage. However, this is not unfairly causing him to have sinned, for this man has shown disregard for the rabbis' will and deserves whatever he receives. [22]
Practical Differences Between the Understandings
Whether one understands the application of hafka'at kiddushin to gittin as being retroactive (like the Ri) or as causing a divorce to result from the present onward (like Pnei Yehoshua, for cooperative people, and the Rashba) has several key halakhic ramifications ( nafka minot). For example, a man may not marry certain immediate relatives of his wife even after he divorces her. [23] The Pnei Yehoshua [24] cites the Ra'ah, who rules that a man who gives his wife a get in a manner which invokes hafka'at kiddushin is biblically permitted to marry her immediate relatives, for she was never his wife. Rabbinically, however, he is prohibited from doing so. A similar opinion is attributed to the Ra'avad. [25] The Pnei Yehoshua himself, though, believes that it is biblically prohibited for a man to marry his ex-wife's relatives even in a hafka'at kiddushin divorce. This is consistent with his basic understanding of hafka'at kiddushin, as he believes that the divorce does not uproot the marriage retroactively. He asserts that most Rishonim did not mention a rabbinic prohibition against such a man marrying his ex-wife's relatives precisely because they believe that this is biblically prohibited, as in a regular case of divorce.
Another issue which depends upon the issue of retroactivity is whether or not a woman who receives a get under circumstances of hafka'at kiddushin may marry a kohen. In general, a kohen is not permitted to marry a divorced woman. [26] Is the woman whose marriage is terminated via hafka'at kiddushin considered to be a divorcee, or is the hafka'a an annulment of the entire marriage without the mechanism of divorce?
This question is discussed by R. Shlomo Kluger. [27] Among other things, he mentions that according to the opinion of the Ri cited by Tosafot, such a woman should be permitted to a kohen (because the hafka'at kiddushin is a retroactive annulment and not a divorce), whereas according to the Rashba she should be prohibited to a kohen just like any divorced woman.
Another interesting nafka mina which could depend on this issue arises in a case in which a man gives something (such as a ring) to a married woman for the purpose of kiddushin. Later, the woman is divorced by her husband through a rabbinically valid get which involves hafka'at kiddushin. At the time of the attempted kiddushin of the stranger, these kiddushin were obviously meaningless, as a woman may only be married to one man at a time. However, now that the woman is retroactively single, perhaps that stranger's kiddushin should take effect. The late Acharonim deal with this possibility, but they address other factors which lead them to conclude that even according to those who understand like the Ri, this woman is not retroactively married to the stranger. [28]
The possibility of being able to undo a marriage becomes especially tempting in cases where a woman "remarried" without a get. Such a "remarriage" in reality constitutes adultery. Any child born from the second "husband" is considered a mamzer (bastard) [29] and may not marry a natural-born Jew. [30] If there were any way to abrogate the woman's first marriage, her second marriage would no longer be viewed as adultery, and children from that marriage would not have the status of mamzer. Accordingly, the Maharsham [31] actually suggested instructing the first husband to send a get to the woman with a messenger and cancel it on the way (the case to which the gemara in Gittin applied hafka'at kiddushin). [32]
This idea, as tempting as it sounds in theory, is not halakhically feasible. As we have seen above, such a get does not take effect retroactively at all according to the Rashba. Even Rabbeinu Tam, [33] who fundamentally believes that the hafka'at kiddushin of such a get is effective retroactively (like the Ri), adds that the rabbis only instituted hafka'at kiddushin when the husband is not deliberately attempting to undo the marriage retroactively. If, however, the get is being given for the express purpose of undoing the marriage (such as a case where he wants to turn the adultery into a legal relationship), hafka'at kiddushin is not applied. Furthermore, even were such a get effective retroactively (for example, according to Ri himself), this still may not help the mamzer. As we mentioned above, the Ra'ah and Ra'avad believe that a woman divorced through hafka'at kiddushin is permitted to marry a kohen on a biblical level, yet even they believe that a rabbinic prohibition exists. Similarly, the Oneg Yom Tov [34] states that even after undoing the first marriage through a hafka'at kiddushin get (assuming that it can work retroactively), the woman maintains the status of a married woman on a rabbinic level from the time of the wedding until the day on which the get is given. It follows that the children of the second marriage (the products of a rabbinically married woman and a man other than her husband) are mamzerim on a rabbinic level. [35] This even worse than being a mamzer on a biblical level, because a rabbinic mamzer is prohibited to marry both a natural-born Jew and a biblical mamzer. There are also other considerations which make this solution untenable, but they are beyond the scope of this article. (R. Shlomo Zalman Auerbach [36] discusses the Maharsham's proposal at great length and counts six major problems in total.) In practice, halakhic authorities unanimously agree that this "solution" is not viable. [37] Even the Maharsham, who proposed the idea, cautioned against using it in practice ( la-halakha ve-lo le-ma'aseh). [38]
Hafka'at kiddushin of One Who Behaved Inappropriately
The second context in which hafka'at kiddushin is applied is one in which the marriage ceremony itself happens in an inappropriate manner. The gemara in Bava Batra [39] states:
Mar bar R. Ashi said, "Regarding a woman [who was coerced by a man into accepting something for the purpose of marriage], the marriage is unquestionably void. [This is because] the man acted dishonorably, so the rabbis act towards him dishonorably ( Hu asa she-lo ke-hogen, lefikhakh asu lo she-lo ke-hogen) and abrogate his marriage." Ravina said to R. Ashi, "This makes sense when the ceremony was performed with money [or any other object of value, because the rabbis have the authority to revoke his ownership of the object ( hefker beit din hefker), making the original marriage ceremony null and void [40]]. However, what can be said if the man married her through intercourse?" [R. Ashi] answered, "The rabbis render his intercourse promiscuous." [In other words, it is viewed as if the intercourse took place outside the context of marriage.]
In the case described here, the woman, while under coercion, ultimately consented to accept something for the purpose of marriage. Due to the fact that marriage gives the woman certain benefits, she should be viewed as one who was coerced into making a sale (where the victim of the coercion gets something in return, despite having been initially opposed to the sale). In such a situation, the gemara [41] states that the sale is effective (which is not to say that such conduct is proper), and hence this marriage should also be effective. Nonetheless, the rabbis do not let the marriage take effect, in response to the man's shameful conduct. [42] A similar case is described by the gemara in Yevamot. [43] It is important to emphasize that the gemara applies hafka'at kiddushin when the misconduct is inherent in the wedding ceremony itself. However, if a proper marriage ceremony takes place, no behavior in the world can cause the marriage to terminate without a get (or the husband's death, of course). For example, the Rashba [44] addresses a case involving a woman whose husband abandoned Judaism and had no interest in granting her a get. Although the Rashba recognizes that at present this man's entire lifestyle is seen by the rabbis as inappropriate, he writes that hafka'at kiddushin is inapplicable because the marriage ceremony itself contained no misconduct.